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Guest post today by the lovely Gerard Oosterman who wonders why children don’t have more say in their future when a family breaks up.

Children should be seen but not heard?

In Australian Family Court disputes it is often the children who miss out on being heard by a Federal Judge or Magistrate. In most cases, even though the judge or magistrate has the power to hear the children, it is rarely exercised. It is usually the Independent Children’s Lawyer who represents the child/children/ (ICL).

In Germany and many other countries, the Family Court Judges always hear the child. There is a growing understanding of the importance of listening to the children involved. It is the child, more than anyone else, who will have to live with what the Court decides.

While Federal Judges and Magistrates can hear the children in Court, a survey has shown most decline the opportunity and rely on the ICL and other ‘experts’ for advice during the procedures. The cases coming before the Family Courts deal with property and access to children. The fact of Court action is generally a sign that the parents haven’t been able to amicably deal with the separation. Access rights to children are often just as heatedly fought over as the division of property.

The Family Court in all cases decides what is ‘best for the children.’ It seems ironic that in Australia the children are not given the opportunity to bring their wishes before the Court, as they are in many European countries that are signatories to the Convention on the Rights of the Child (UNCRC).

While it is unsatisfactory to say that children should all have the same rights as autonomous adults, including the rights of freedom of expression and the freedom of association and all other rights that adults own, it is equally unsatisfactory and unjust to say that children have no rights of this kind and that their rights in Court matters are irrelevant to the task of adults determining and deciding what is best. This seems to ignore the claim of children to be treated with respect and dignity instead of, as is often the case, fought over as objects

As Australia has been a signatory to the Convention since 1990, how do we explain why children are not heard in front of a Court and allowed to express their wishes?

Often the reason given is the fear of parentification of the child. This term describes a situation in which a role reversal occurs and children assume the role of parent to protect the adult. Asking a child to decide which parent she or he prefers to spend their time with can cause emotional turmoil.

In Family Court cases it is not unusual that one or both parents are deemed to have put the child in this position to try to enhance the prospect of getting more time with the child than the other parent. The child is expected to act as the parent to their own parent and sometimes over other siblings as well. The issue is very complicated because in some cases one of the parents might indeed be totally unsuitable as parent or as the primary caretaker.

In the Family Courts it is the job of the ICL to sort the wheat from the chaff and investigate to get to the bottom of the issue if ‘parentification’ of the child is occurring. The Court appointed lawyer acting for the child will then call in an ‘expert’ in those matters. Both parents are to meet up with the ‘expert’ who is often a qualified child psychologist or therapist. Anyone who ever had dealings with Courts knows that at every turn huge amounts of money is spent. The ICL with the help of the Expert’s report weigh heavily in the final decision-making by the Judge or Magistrate.

The report by the children’s expert is drawn up as a result of a few hours or a day spent by both the parents and the children with the expert. Sometimes first in each other’s company then separately and then the children on their own. After parents as applicant and respondent have filed into Courts numerous times for ‘mentioning’ and ‘final hearings’ the case is put and then includes the affidavits, responses and reports by all the parties’ lawyers including the ICL.

But, when all the lengthy proceedings come to an end, there is this glaring omission. The fundamental rights of every person including children to be heard in Court are totally ignored.

The ICL and other child experts cannot help but put in their own submissions and even if based on the best of intentions and the best advice given, it is second-hand and not direct. How is it possible that the ‘best interest of the child’ excludes this fundamental right?

One reason given is the perceived intimidation of the Court system with its tradition of the dreaded three knocks on the door and ‘all rise in Court’, the bowing of all and then the entrance of the black gowned judge or magistrate on the raised podium. The procedures are often seen as unfriendly if not silly as well. Surely the system can change when children are involved and become child friendly. I could ask, why not change it even for adults?